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Medical Malpractice Lawsuits

malpractice

We hear a lot about medical malpractice suits and how they affect the practice and the cost of medicine. Doctors sometimes get the feeling that a lawyer is looking over their shoulder as they interact with patients, and sometimes they practice “defensive medicine,” ordering unnecessary tests and doing what they think would look best in court rather than what is really in the patient’s best interests. One of my colleagues in the Air Force, a psychiatrist, said at his retirement ceremony that he considered his career a success because he had never been sued. That struck me as a sad commentary on what it means to practice medicine today.

Some of my preconceived ideas on the subject of malpractice were challenged by a recent survey. Medscape asked 3,480 U.S. physicians about their experience with malpractice suits. 60% of responding physicians reported they had never been named in a lawsuit, 31% had been sued in conjunction with other defendants like hospitals, and only 9% were sued as individuals.

Among those sued, the specialties most represented were internal medicine (15%), family medicine (13%), ob/gyn (9%), psychiatry (8%), gastroenterology (6%), cardiology (6%), and pediatrics (5%). Allergy/immunology was the lowest at 0.4%. Part of the variation is likely a reflection of the numbers of doctors practicing each specialty.

Reasons for the lawsuit: failure to diagnose (35%), failure to treat (17%), informed consent (4%), and other (45%, some legitimate and some clearly opportunistic). One respondent was sued after a laparoscopy by a patient who complained that she could no longer eat big meals and enjoy steaks; she neglected to reveal that between the laparoscopy and the suit, she had a gastric bypass and stomach stapling.

23% of respondents said the experience of being sued was horrible, one of the worst experiences of their lives. Some described harassing phone calls, a near-divorce, and a decision to stop practicing OB.

1% expected the lawsuit, 24% suspected there might be a lawsuit, and 74% had no inkling they would be sued.

We hear the horror stories about huge judgments, but most lawsuits don’t even go to trial. In 5%, the case went to trial but was settled prior to a verdict; in 16% the case went to trial and a verdict was rendered. In the rest of the cases, the suit was dismissed or settled out of court, either before or after depositions.

Even if the case didn’t go to trial, being sued was time-consuming. 28% of doctors spent more than 40 hours meeting with attorneys, gathering records, and preparing for depositions.

The length of the entire lawsuit process was most likely to be 1-2 years (39%); 28% lasted 3-5 years, and 11% went on for more than 5 years.

Outcomes: voluntarily dismissed by plaintiff (22%), dismissed by the court (13%), settled before trial (35%), settled at trial (3%), jury returned a verdict in favor of the doctor (13%), jury returned a verdict in favor of the plaintiff (2%).

Monetary award: None (57%), up to $500,000 (34%), up to $2 million (9%), over $2 million (2%).

62% thought the result of the lawsuit was fair. Only 7% thought saying “I’m sorry” would have helped. One who didn’t think so commented that a patient’s wife had interpreted his apology as an admission of guilt and a reason to sue. In most cases, defense lawyers were provided by the insurer. 70% were completely satisfied with their lawyers, 1% thought they were incompetent and destroyed the case. Some insurance policies have a “required to settle” clause; doctors were required by their insurer to settle in 9% of cases and encouraged to settle in 21%. Insurance covered the entire payout in most cases. Patients’ reactions to lawsuit: 91% said their patients didn’t know about it or didn’t mention it; in only 1% of cases, some patients left the doctor’s practice. Long term effects: 29% said they no longer trust patients and treat them differently, 6% left the practice setting, 63% reported no effects.

When asked about the worst thing about the trial, emotions came through loud and clear. One doctor was asked to “list the date, publisher, and title of every book, magazine, journal you own and/or subscribe to.” One complained that the plaintiff’s attorney lied; another said the judge fell asleep during the trial.

Advice to avoid lawsuits:

  • Follow up even when you don’t think you have to
  • Practice more defensive medicine (One commented that “It is perfectly legitimate to order every test that you feel is acceptable to prevent another suit.”)
  • Document more often, more thoroughly; document even cursory conversations.
  • Get rid of rude, demanding, noncompliant patients.

I don’t know if we should believe the Medscape study, since it was based on physicians’ voluntary responses to a questionnaire and may not have been a representative sample of the physician population. A 2011 study in The New England Journal of Medicine was based on more objective data from a large liability insurer and it got rather different results. It found that 7.4% of physicians are sued every year, with the highest rates among neurosurgeons (19.1%), cardiothoracic/vascular surgeons (18.9%), and general surgery (15.3%), and much lower rates for family medicine (5.2%), pediatrics (3.1%), and psychiatry (2.6%). It estimated that by the age of 65 years, 99% of physicians in high-risk specialties and 75% of physicians in low-risk specialties have been sued. 78% of malpractice cases did not result in payments to claimants; when they did, the median payment was $111,749. The highest mean payment was in pediatrics, over $500,000. Recently there has been a trend to decreasing amounts, not increasing.

According to some reports the number of malpractice suits and the cost of malpractice insurance are both decreasing. One source estimates that the average insurance premium for surgeons is $10,000; for internal medicine specialists, $4-6,000. But premiums vary widely by location, insurer, specialty, and type of coverage. The standard rate for a neurosurgeon practicing in Long Island in New York State is $331,295.

Various studies estimate that malpractice coverage and defensive medicine account for 2-11% of total health care spending.

I don’t question that patients should be compensated for injuries due to physician malpractice, but unfortunately the “system” tends to hurt some good doctors who are practicing good medicine, and some doctors who should lose their license get away with egregious malfeasance because they are able to inspire loyalty from their patients. I remember hearing about a surgeon whose patient returned complaining of pain. He did an x-ray, saw that he had left a surgical clamp in her abdomen, and instead of apologizing or even admitting that he had done anything wrong, he told the patient “I think that clamp has just about finished doing its job now, and we can take it out.” He charged her full price for a second surgery; she remained oblivious and was grateful for what she thought was his thorough, attentive care.

I wonder if there isn’t some better way. Hospital M&M (morbidity and mortality) conferences do a good job of not only identifying errors but of helping doctors learn from them. Judges and juries aren’t as capable of understanding the intricacies of the medical issues involved. In an ideal world, some independent body of medical experts could determine whether standard medical practice was followed and whether the physician made a mistake, and could advise the courts on the medical merits of the case. In the real world, doctors will just have to keep paying those insurance premiums, documenting everything, improving communication, and earning their patients’ trust. And lawyers will not lack for business.

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55 thoughts on “Medical Malpractice Lawsuits

  1. Dorit Reiss says:

    Several points:
    A. Is there a better way? Well, there is another way – whether it’s better depends on your criteria and point of view. You could have a health court, a specialized administrative tribunal handling these matters: http://en.wikipedia.org/wiki/Health_court. I would support such a scheme, but it would not be perfect, either.

    B. Every time I teach medical malpractice, I run into contradictory strong feeling on the part of students. I always have students who have had bad experience, themselves or with family members, of negligent medical behavior, and students who were MD themselves or have family members who are MDs. It’s a tough situation for both sides.

    C. Part of the problem is that the rubric of negligence does suggest fault, suggests bad behavior. I’m not sure there’s a good alternative – a way to have liability for errors that shouldn’t happen without the emotional baggage.

    Thank you for this information. Great stuff.

    1. Peter S says:

      I have not studied the issue, but as a lawyer (not a med mal one) my initial reaction is that any sort of health court that did not involve a right to trial by jury would violate the Seventh Amendment to the Constitution.

      1. Dorit Reiss says:

        That’s a tricky one. I think that under Grandfinanciera, Congress at least has substantial leeway to create article I administrative schemes rather than courts – for example, we have workers’ compensation upheld. But it’s by no means certain.

        One way around it is to make the alternative forum optional, but that may create problems of its own. My understanding is that the Florida and Virginia schemes are, in fact, optional.

        1. Dorit Reiss says:

          That’s Granfinanciera, SA v. Nordberg – 492 US 33 (1989). Not sure why I added a /d/.

        2. Peter S says:

          My understanding is that that may be true of “public” rights against the government but not private rights.

          1. Dorit Reiss says:

            That’s right, but the way they define public rights leaves room for ambiguity – “or these purposes, a “public right” is not limited to a matter arising between the Government and others, but extends to a seemingly “private” right that is closely intertwined with a federal regulatory program that Congress has power to enact.”

            This isn’t about state law, so it does not address when a state can create a legislative scheme that can get around that. But an administrative scheme with a tax on all health providers or insurers will probably be fine. I think it’s doable in a constitutional way. Not necessarily easily.

  2. ray bellamy says:

    In our community and teaching hospitals, M and M conferences, so valuable in the past, as Dr. Hall has indicated, have been eliminated years ago for fear of liability. There were suspicions that nursing and other personnel within the hospital staff were contacting plaintiff attorneys with heads-up information on some cases being presented. Whether that was actually the case is unclear to me. A sign of the times, perhaps.

    1. WilliamLawrenceUtridge says:

      Wow, that’s contemptible, even for lawyers.

      Uh…no offence Mr. Bellamy and your presumed spouse.

      Ahem.

  3. Cervantes says:

    A basic problem is that people who suffer iatrogenic harm have no other way of being compensated or receiving the money they may need for long term care and replacement of income. Iatrogenic harm does not necessarily imply negligence or incompetence on the part of a physician — there is a certain risk associated with just about every medical procedure. But the only recourse people have is to sue. I believe research has found little association between the actual presence of negligence and whether people file a lawsuit — as you noted, often there is negligence, but no suit; while most suits are not successful.

    What we ought to do is to separate compensation for medical injuries from accountability for physicians. These are two different problems. Physicians who are negligent or incompetent should be identified and either ameliorate their behavior or skills, or lose their licenses; compensation for injuries should be unrelated to whether the injury was the result of negligence. Of course, in countries with universal health care and adequate support for people with disabilities and custodial needs, this is already not a problem.

    1. Michael says:

      Several countries have no-fault compensation systems so more people can receive modest compensation in a timely manner and the information with regard to how and why mistakes happen can be used to improve care. I am not an economist but it is my general understanding that the results of these programs are mixed. It certainly would seem a worthwhile option for the non egregious types of everyday risks and errors.

    2. NotADoc says:

      Exactly, Cervantes. If the mechanic fails to put the plug back in your oil pan or the roofer accidentally sets fire to your house, their insurance covers it. No lawsuit necessary. Medicine is one of the only fields I can think of where the consumer assumes the risks and the costs to make it right. If you are uninsured, poorly insured, or just tapped out on deductibles and co-pays, iatrogenic illness or injury can be devastating. An health care system that had our best interests at heart would solve much of the lawsuit problem.

  4. PDelaney says:

    “Hospital M & M (morbidity and mortality) conferences do a good job of not only identifying errors but of helping doctors learn from them.”

    That’s true for those doctors working in hospitals. But fewer and fewer primary care physicians work in hospitals. I’ve worked in a few private practice settings as an FP, none have had outpatient M&M conferences. For those doctors, the first valid negative criticism of the subpar care may be a lawsuit.

  5. goodnightirene says:

    I once knew an OB who was sued over the death of a newborn. She quit full time practice, had six kids, and slowly converted to all kinds of pseudoscientific “practices”. Or you could just say that she had a breakdown, I guess.

    Thank you for the statistics. Politicians often present malpractice as some sort of huge, ever-expanding problem that consumes a great deal of health care resources.

  6. John McGuinness says:

    I am an OB-GYN and my sister was recently (believe it or not) foreperson of the jury on a medmal case for a shoulder dystocia and a subsequent Erbs palsy. Her observations were interesting to me. She said that the sentiment of the jury was to want to acquit the physician. The plaintiffs claim that the physcian “pulled too hard” was refuted by the documentation- clearly good documentation is key. Also they were sympathetic to the situation of a shoulder dystocia and the doctor doing what needed to be done to limit the damage as best he could. Her experience was reassuring to me.

    1. Peter S says:

      What was the plaintiff’s lawyer thinking?

      1. Windriven says:

        Sue ‘em all, let the judge sort it out.

        Seriously, my circle of friends back in New Orleans days included a couple of PI attorneys. Inevitably when we got together for lunch one of them would roll out a story (names were never uses), some details would be discussed, and one of the guys would opine, “that sounds like a (say) $25,000 problem” referring to the value of the file to the plaintiff’s attorney. Discussions were never of right and wrong other than the bearing that certain types of culpability would likely have on the settlement. Settlement was almost always the desired outcome. Actually trying a case to judgment adds too many uncontrollable variables.

        One case involved a garbage truck operator who had disabled the fail-safe that required both hands to operate the buttons that caused the compactor to operate. The plaintiff had lost his thumb when it got caught in the compactor. I was sure he would lose because the injury was a direct result of his tampering with the equipment. My attorney friend assured me he would get, I’ve forgotten the number, but a substantial settlement – and in fact he did.

        The most disturbing part is the complete lack of concern about anything other than winning for their client (and themselves as most of these were contingency cases). I guess that is how you have to look at the world if you are going to be an attorney.

        To wrap this up, most of the lawyer jokes that I know revolve around absence of ethics and most of the best lawyer jokes I know I got from my attorney friends.

        1. Peter S says:

          “The most disturbing part is the complete lack of concern about anything other than winning for their client (and themselves as most of these were contingency cases). I guess that is how you have to look at the world if you are going to be an attorney.”

          Not to get into the whole debate, but if a lawyer were representing you, would you want him or her to be concerned about something other than winning your case or getting the best possible result? If so, what else would that be? I have no issue with this at all, provided the lawyer acts ethically within the bounds of the law. Ours is an adversarial system and a lawyer is an advocate for one side, period. Have I encountered some lawyers who cross the line? Undoubtedly. But I don’t think it’s any more endemic to law than any other profession.

          How many lawyers does it take to change a lightbulb? How many can you afford?

          1. Windriven says:

            “would you want him or her to be concerned about something other than winning your case or getting the best possible result?”

            All lawyers are scum … except mine ;-)

            Yes, I understand the nature of the system, I just am not sure that it is both efficient and just in technically complicated situations like medical malpractice. I like the idea of specialist courts or a system that demands specialist arbitration prior to litigation. But I’m not holding my breath.

            What do you call 50 lawyers at the bottom of the Mississippi River? A good start.

            1. Peter S says:

              Q: What’s the difference between a jellyfish and a lawyer?
              A: One’s a spineless, poisonous blob. The other is a form of sea life.

              1. Rebecca D. says:

                Q: What do a lawyer and a sperm have in common?

                A: Both have about a one in 3 million chance of becoming a human being

              2. Windriven says:

                @Rebecca D

                Hurray! A lawyer joke I hadn’t heard before.

            2. PeteSYD says:

              Why don’t sharks bite lawyers?

              Professional courtesy.

          2. Dave says:

            A guy walks into a bar and grumbles to the bartender, “All lawyers are assholes.” The guy next to him says, “I really resent that remark.”

            The first guy replied, “Why, are you a lawyer?”

            The second guy answered, “No, I’m an asshole.”

            I was named once in a lawsuit and later dropped because my one encounter with the patient had no relationship to what the suit was about. Nonetheless I had this hanging over my head for about 4 years with the plaintiff’s attorney dragging things on and “continuing” the court date numerous times. The physicians involved in the suit followed guidelines to the letter, but eventually settled out of court for $10,000 just to get the thing over with. This suit did affect the way I’ve practiced medicine since then, and the way I’ve viewed patients.

        2. WilliamLawrenceUtridge says:

          The most disturbing part is the complete lack of concern about anything other than winning for their client (and themselves as most of these were contingency cases). I guess that is how you have to look at the world if you are going to be an attorney.

          A lawyer must do this though, as shitty as it is. If they don’t, then you run two risks – the ruling gets annulled due to mistrial, wasting everyone’s time, or you end up having the lawyers decide in advance who is “worthy”. Certainly there’s negatives, but the alternatives are also bad.

          Biggest negative I see is the way money allows you to hire pools of lawyers, so ultimately money wins. But I can’t see a way around that.

          1. Windriven says:

            William,

            “or you end up having the lawyers decide in advance who is “worthy”. ”

            In the US, that is exactly how it works much of the time. Lawyers for the opposing sides grunt and posture. The bottom line is that the insurer wants to settle for as little as possible and the plaintiff for as much as possible. Often the final settlement is shaped as much by each side’s assessment of risks going forward versus the value that can be agreed upon today. In that calculus justice is only one of many competing interests.

            But yes, I understand why it is done this way. I just don’t accept that it is the optimum possible way from the standpoint of either litigant or of society at large.

            1. Peter S says:

              From a free market point of view, a settlement negotiated by informed economic actors based on the facts and their risk/reward tolerances seems as good an approximation of “justice” as any.

              1. Windriven says:

                From a free market point of view, a settlement negotiated by informed economic actors based on the facts and their risk/reward tolerances seems as good an approximation of “justice” as any.

                Money does not equal justice. Further, between the reality that often one gets as much justice as one can afford and the equally repellent concept of deep pockets liability often means a wash of money changing hands (or not) that may have little to do with actual harm or professional misconduct.

                The whole point should be to make injured patients whole, punish doctors who are truly negligent, and avoid penalizing doctors for bad outcomes that are substantially beyond their control. That should be doable without US healthcare spending nearly so many millions of dollars per year on attorney’s fees.

              2. Peter S says:

                And who decides if a doctor is “truly negligent”? It can’t be that easy, or there wouldn’t be so many cases where each side has a highly credentialed doctor taking opposing points of view.

              3. Windriven says:

                “And who decides if a doctor is “truly negligent”?”

                A lawyer? A judge? 12 people who once saw an episode of “House”? Yeah man, that’s the way to hammer it.

                How about a panel including physicians, ethicists, and lawyers?

                “cases where each side has a highly credentialed doctor taking opposing points of view.”

                You do not see a difference between a hired gun and an independent expert with no financial interest?

              4. Peter S says:

                I am very skeptical of ceding any decision to independent experts, or at least of the notion that there is some objective, verifiable correct answer to the question whether in a particular case the doctor was negligent. At the edges, sure, but in complex cases, it seems ultimately independent experts are going to disagree just as often as hired guns and juries, depending on their experiences, preferences, priorities, value judgments, and so forth.

              5. Windriven says:

                “At the edges, sure, but in complex cases, it seems ultimately independent experts are going to disagree”

                And that is why this should be done in a setting where the patient is made whole whether the doctor was negligent, not negligent, or if no one can tell with certainty.

                You know it is all fine in a black and white world where an injured patient prevails and a drunken surgeon pays. But what about when the patient loses – and still has her medical issues to deal with? Or the physician loses but didn’t actually do anything wrong?

                What exactly is the point of dragging everybody through that kind of ordeal except, perhaps, in cases of clear and egregious wrongdoing? I don’t see the advantage.

              6. Peter S says:

                “And that is why this should be done in a setting where the patient is made whole whether the doctor was negligent, not negligent, or if no one can tell with certainty.”

                OK well that is something different altogether; if we aren’t making compensation dependent on proving fault but want to compensate people for all injuries causally related to medical care. I think that’s a worthy goal, but how do we pay for it? I mean aren’t insurance rates going to skyrocket if the coverage includes all injuries “caused” by the doctor whether or not the doctor was negligent? Or are we talking about just making the whole system a governmental function?

              7. Windriven says:

                “but how do we pay for it? I mean aren’t insurance rates going to skyrocket if the coverage includes all injuries “caused” by the doctor whether or not the doctor was negligent? Or are we talking about just making the whole system a governmental function?”

                Well all I can say is that healthcare works in a number of other countries for a lot less money and with much less medmal litigation.

                I’m not a big believer in the ability of the federal government to operate anything efficiently* but realistically it would be essentially impossible to create a system more effed up than the one we currently have. And if our government can’t run a single payer system, maybe we could hire the Germans or the Danes. ;-)

                *Although everything that I can find suggests that Medicare is pretty well run.

            2. Peter S says:

              Maybe the costs of healthcare would go down if we all entrusted ourselves to CAM practitioners who would detoxify us and build up our immune systems, so we stayed healthy more? :)

              1. Windriven says:

                Costs would go down. Unfortunately, so would longevity. But just think how healthy and how one in body and mind we’d be during that brief period before an agonizing death!

        3. Andrey Pavlov says:

          @windriven:

          A boy asks his father, who is a lawyer, “Daddy, what does ‘ethics’ mean?” The father says, “Well son, it’s easier to explain with a story. Let’s say I have a client who wants to pay me for an hour’s worth of work. So he gives me a crisp clean $100 bill and leaves my office. As I fold the bill in half to put it in my pocket, I realize it is actually two $100 bills stuck together. Ethics is the dilemma of deciding whether you keep the whole $200 for yourself or split the extra $100 with your partners.”

          1. Windriven says:

            Thanks Andrey, another lawyer joke I hadn’t heard :-)

          2. Peter S says:

            $100 an hour? That joke needs to be updated. :)

  7. BobbyGvegas says:

    Two words: “Loser Pays”

    Take the extortion piece out of it.

    1. Serge says:

      Also take the “No win – no fee” advertising out of it.

  8. Kiiri says:

    I would agree that we need a better system. A no-fault compensation, or a system set up similarly to NVIC with special masters to award compensation. Heck if the docs kicked in the money they pay for malpractice insurance it would work out. Still holding out for universal healthcare in the US.
    My anecdote is one from my mom, her mother died on the operating table during open heart surgery (years before I was born so probably early 70′s). My mom tells that the surgeon came out and told the family quite bluntly that he had made a mistake. According to my mom, she saw the tears in his eyes and he told her that he had made a mistake but that he would never make that mistake again. My mom was devastated of course to lose her mother. I asked why she didn’t sue the doctor. My mom said “Because he is a man and he made an honest mistake and he had the guts to tell us that when he told us my mother was dead. And I believed him when he said he would never make that mistake again. I couldn’t sue him for that.” So for those who don’t think an apology can be a powerful thing, for my family knowing why she died, and having him admit it caused them not to sue him. I think for some people when mistakes are made they sue just to find out what really happened, for an explanation and perhaps for an admission. I don’t think for all of them it is about money.

    1. Windriven says:

      “Still holding out for universal healthcare in the US.”

      Me too. Holding out, but not holding my breath.

      Two appellate courts just issued conflicting judgments on the legality of some subsidies under ACA. As I understand it this will likely end up in the Supreme Court. In the event that SCOTUS affirms the decision that the subsidies are illegal, ACA is in serious trouble. But any SCOTUS decision on this is a long way off. In the meantime if enough people decide ACA is less idiotic than the camel bazaar that preceded it and if the Obama administration is replaced by one slightly less feckless, there might be a shot at a single payer or, perhaps better still, a government insurance option not unlike Medicare.

  9. FredJ says:

    A bit of C&P:

    •A May 11, 2006 article in the New England Journal of Medicine noted that only one quarter of doctors disclosed errors to their patients, but “the result was not that much different in New Zealand, a country that has had no-fault malpractice insurance” [i.e., no litigation against doctors] for decades. In other words, “There are many reasons why physicians do not report errors, including a general reluctance to communicate with patients and a fear of disciplinary action or a loss of position or privileges.” George J. Annas, J.D., M.P.H., “The Patient’s Right to Safety – Improving the Quality of Care through Litigation against Hospitals,” New England Journal of Medicine, May 11, 2006.

    •In Massachusetts, nearly all hospitals fall under the state’s charitable immunity laws that cap their liability at $20,000. Yet hospitals are still “vastly under-reporting their mistakes to regulators and the public.” According to Boston Magazine, “The biggest challenge is finding a way to break the culture of silence in hospital corridors that has long crippled efforts to cut medical errors, just as the blue wall of silence has stifled police investigations. Doug Most, “The Silent Treatment,” Boston Magazine, Feb. 2003.

    •Tom Baker, Connecticut Mutual Professor of Law and Director of the Insurance Law Center at the University of Connecticut School of Law, has written, “to prove that lawsuits drive medical mistakes underground, you first have to prove that mistakes would be out in the open if there were no medical malpractice lawsuits. That is clearly not the case.” Tom Baker, The Medical Malpractice Myth (2005).

  10. RobLL says:

    My mother suffered injuries during a surgery. Lawyers suggested likely 1/3 of $1 million. which we would not pursue. What we did want was $12K to cover expenses during recovery – neither the lawyer, hospital nor doctor was interested in anything so picayune.

  11. Lytrigian says:

    I’ve sometimes wondered if I should have sued for malpractice at one point. We decided not to, but it sure would have made things easier.

    My son was born prematurely at what we thought was 23 weeks’ gestation, based on when we believed he was conceived. Based on his birth weight (770g) the NICU put him at 26 weeks. Part of his treatment was to increase his blood pressure, which was thought to be too low. At 2 days old he began hemorrhaging from all his major organs: Stomach, colon lungs, liver, and his brain. It was, of course, the brain hemorrhage which has had the most severe long-term effects.

    Without any particular expertise on my part, it seemed “obvious” that the immediate cause of the hemorrhaging was the artificially elevated blood pressure. This may have been the wrong thing to do, particularly if our (and the OB/GYN’s) idea about the gestation time was correct. (Or? I’ve never had a qualified medical opinion on that.) But I also understood that even the survival of a baby born that early was (and is, even 18 years later) far from a sure thing, and that the neonatologists were making the best decisions they could under difficult and chancy conditions.

    So what do you do? I chose not to sue. But I could understand why someone might.

  12. Jann Bellamy says:

    I agree that the present system does not work. It compensates a small percentage of those injured by medical error and none of those injured when there is no one to blame. It is also time consuming, expensive, and sometimes forces those allegedly injured to hang onto their injury too long while the case is resolved, instead of moving on to recovery. I am not sure what the answer is, although a review of cases by a panel of experts may be the solution if the Constitutional issues can be addressed. However, the medical community must be willing to honestly evaluate its members and hold them liable where there is fault. That is very hard for any professional to do but it is an issue that must be resolved if anyone is to have faith in a revised system. Another problem is that the plaintiffs’ bar is very influential in the Democratic party (and I say this as a registered Democrat), making the possibility of a legislated solution more difficult.

    1. Peter S says:

      I can only assess it based on extremely limited anecdotal experience, but how effective are state licensing boards at investigating the doctors they regulate? Of relevance to this board’s general focus, I have complained in a few cases about practitioners who are so far out of bounds that there is no conceivable argument that they are offering a legitimate medical treatment. I’ve done this with respect to doctors claiming they can cure autism, because as posted on another thread, as the parent of an autistic adult I just find this so incredibly offensive. I have uniformly been rebuffed by these authorities (those that even responded), saying the doctor is just using his (it was all men) professional judgment.

      Are independent experts presumably appointed by some regulatory body going to be any better at taking their own to task?

  13. Kathy says:

    A doctor I knew was once sued by a woman for sexual misconduct. He was pressured by the lawyers to settle out of court but refused, asserting his innocence and preferring to go to trial. He was acquitted.

    Turned out the lady concerned had quite a nice sideline going in suing a number of well-off men for sexual misconduct. She even had a group of friends in with her, who would come forward to say they’d experienced the same, if required. She relied on the majority of defendants (at the advice of their lawyers) preferring to settle without a trial. This way she got her money easy.

    Unfortunately all this could not be brought forward as evidence of conspiracy or perjury. My friend had to run the whole gauntlet. But he refused to back down and let her get away with it yet again, whatever the risk to himself.

    1. zotdoc says:

      I’ve retired from general surgery and have a few comments on the article
      1.) average malpractice insurance for a general surgeon in Georgia lately is $50,000.00 per year, and after my first five years of practice it was never, over the past 30 years less than 28,000.00.
      2.) I don’t know any surgeons who have not been sued more than once unless they have just started practice
      3.)Your insurance company has no interest in fighting for a defense – your defense attorney assigned by the insurance company has no interest in fighting for your defense – they work for the insurance company. They will drag it out for a year or two to justify 100,000.00 or so in legal fees but will eventually settle, even if the case is totally bogus.
      4.) At my hospital, a plaintiffs lawyer had his wife work as a social worker to find and feed him cases. This was tolerated by our hospital attorney, who did the palintiff’s lawyer’s first divorce.
      5.)doctors do not stick together as the attorneys claim. There is always an expert somewhere who will testify to anything, no matter how ridiculous, for a fee.
      6.) at the end of the suit, the insurer, defense attorneys, and plaintiffs attorney all go home a little richer, while the patient gets a minor share of the total money spent. Meanwhile, your reputation is ruined, you have spent a lot of time and you now get to go before the medical board to explain everything and possibly receive fines or sanctions. the record of the suit goes into the data bank, and this will follow you around the rest of your life.
      7.)my last case I hired a private attorney at my expense. The insurance company was upset and the plaintiff’s attorney was upset because the settle out of court pact was violated. The suit was dropped but I spent 50,000.00 in legal fees, and of course the law does not allow a doctor to personally sue the plaintiff’s attorney for filing a frivolous l

  14. This is an admirable article–willing to reconsider preconceived notions. Part of the problem is that there has been a campaign to paint America as a litigious society, which is in fact not the case. See, for instance, the documentary “Hot Coffee”, about the campaign to misrepresent what happened in the McDonald’s coffee-burning lawsuit. As a rule, it is the general public, not physicians and corporations, that are most vulnerable, and while there are ambulance chasers out there, lawsuits are less common than we think, and an important bulwark against quackery.

  15. charles minus says:

    I’m a retired private investigator who worked on many med mal cases. I’d like to bring up something here that hasn’t been mentioned and which wasn’t been covered in the article. But, as I recall, a very large percentage of med mal cases involve a very small percentage of practitioners (I wish I could remember the numbers – it’s been a few years). Most docs do a great job, but there are some really sloppy, unethical people out there making as much money as they can as fast as they can. They practice in one state until they lose their license and then move to another state and set up practice right away. And the professional associations protect them. I think the medical profession needs to do a much better job of policing itself against these characters. I’ve seen their work; it is not pretty.

    1. WilliamLawrenceUtridge says:

      SBM dedicates a not-inconsequential amount of bandwidth to some of these doctors, but there’s a lot of quacks and hacks out there.

  16. CanalisOpticus says:

    I think the most astonishing fact is that most injured patients will not sue. And for obvious reasons, at that – they have just been injured and no energy for going to trial.

    Our endocrinology lecturer brought in a patient who had suffered from SIADH years before, for unknown reasons – perhaps as a rare side effect of antidepressants she took at the time. Her natrium levels were critically low, to the point that she had terrible headaches. She came to a hospital by ambulance, blood work was being done and returned a natrium of 98 mmol/l, and the ER physician did the obvious thing – give her i.v. natrium.

    Long story short: It was way too much natrium at once, her brain stem shrunk for osmotic reasons, she was left paralyzed for years and still had minor tremors and ataxia while retelling her story to us.

    But even in this case, where the doctor clearly did something wrong, and where every medical expert called up to testify would have condemned his actions, and in a court system that relies very much on that expert opinion instead of any jury verdict (germany), the patient didn’t sue. Understandable, but that is with a mistake that seems to be on the same level as transfusing AB0 incompatible blood. I can only imagine how many less severe mistakes are quietly accepted by the patient.

    1. Nell on Wheels says:

      I had a friend who suffered multiple serious infections, include MRSA, for more than two years after surgery to correct a blockage of a vein in her leg. She was told that she would be on antibiotics for the rest of her life and would just have to get used to being weak and feeble, more or less an invalid. The infectious disease doctors never did anything more than pump her full of antibiotics. The original surgeon was never consulted. I repeatedly suggested that she got to a major medical center in the area, but she had been convinced by her doctors that she was just going to have to live with her “new normal.”

      One day she ended up in the ER with sepsis. I’d like to think it was my influence, but for whatever reason, before she passed out, she requested to be taken to that major medical center. After draining an abscess the size of a football, the surgeon there discovered that the original surgery had been botched (don’t know what that entailed, but I didn’t get a chance to talk directly to the surgeon). She corrected that, and my friend had a swift and complete recovery. Her color and energy within three days of the surgery were better than they’d been for two years and within six weeks she was back to driving, playing with her grandkids and running the business she shared with her daughter. She never had another infection.

      I encouraged her to sue the original surgeon. She was reluctant and by the time she got around to it, the attorney she consulted said that too much time had passed. She decided she was too busy getting on with her life to pursue it any further.

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